The blog of ObiterJ - responsible and sometimes critical comment on legal matters of general interest. This blog does not offer legal advice and should not be used as a substitute for professional legal advice.
'The life of the law has not been logic; it has been experience. The law embodies the story of a nation's development...it cannot be dealt with as if it contained the axioms and corollaries of a book of mathematics' - (Oliver Wendell Holmes - 1841 to 1935). Pro Aequitate Dicere

Saturday, 12 August 2017

EU (Withdrawal) Bill ~ Clause 6 - Interpretation

Labyrinthine Legislation

With masterly understatement, Dr. Paul Daly (University Senior Lecturer in Public Law, University of Cambridge) wrote that - "Even seasoned lawyers are not going to enjoy navigating
these provisions"

It is not possible to even begin to understand the complexity of Clause 6 without some understanding of the convoluted definitions set out in Clause 6(7). The terms defined relate to "Retained" law and are - 'retained case law', 'retained domestic case law', 'retained EU case law', 'retained EU law' and 'retained general principles of EU law'. Here is just one of the definitions:

“retained general principles of EU law” means the general principles of EU law, as they have effect in EU law immediately before exit day and so far as they -(a) relate to anything to which section 2, 3 or 4 applies, and (b) are not excluded by section 5 or Schedule 1, (as those principles are modified by or under this Act or by other domestic law from time to time)."

Schedule 1 para. 2 says that - "No general principle of EU law is part of domestic law on or after exit day if it was not recognised as a general principle of EU law by the European Court in a case decided before exit day (whether or not as an essential part of the decision in the case).

One key general principle of EU law is the doctrine that EU law
is supreme. This doctrine stems from European Court of Justice case law
in the 1960s - Van Gend en Loos 1963 and Flaminio Costa v ENEL 1964.
However, that doctrine will NOT be a 'retained general principle of EU
law' because it is specifically excluded by section 5(1) - "The principle of the supremacy of EU law does not apply to any enactment or rule of law passed or made on or after exit day." (Note - The principle will continue to apply to pre exit day enactments or rules of law).

What are the General Principles of EU Law?

Interestingly, the term "General Principles of EU Law" is not all that easy to pin down. There is Article 6(3) TEU which states, in relation to human rights - "Fundamental rights, as guaranteed by the European Convention
for the Protection of Human Rights and Fundamental Freedoms and as they result
from the constitutional traditions common to the Member States, shall constitute
general principles of the Union's law." Several decisions of the CJEU have touched upon this - e.g. Stauder v City of Ulm (1969), Internationale Handelsgesellschaft mbH v EVST (1970), Nold v Commission (1974).

(1)A court or tribunal - (a)is not bound by any principles laid down, or any decisions made, on or after exit day by the European Court, and (b)cannot refer any matter to the European Court on or after exit day.

References are the process (under Article 267 TEU) by which the CJEU has been able to rule on points of EU law with a view to ensuring a common interpretation throughout EU Member States. Clearly then, whatever the state of EU law on exit day, there is bound to be divergence afterwards between the UK and the EU.

Removing the Court of Justice of the EU from authority within the UK is a political red line and the Bill reflects this BUT may we just ignore whatever the CJEU does after exit day? Not quite ...

Clause 6(2):

"A court or tribunal need not have regard to anything done on or after exit day by the European Court, another EU entity or the EU but may do so if it considers it appropriate to do so."

Courts in the UK will not be bound by any post exit day decisions of the CJEU but the courts will be able to "have regard to" such decisions. "Having regard to" may include following a decision, accepting it with modifications or rejecting it. How this area of law develops will be of particular interest and importance. There is also the potential to bring the judiciary into conflict with politicians - a point discussed further below.

Clause 6(3):

Deals with Retained EU Law - defined by Clause 6(7) as - "anything which, on or after exit day, continues to be, or forms part of, domestic law by virtue of section 2, 3 or 4 or subsection
(3) or (6) above (as that body of law is added to or otherwise modified
by or under this Act or by other domestic law from time to time)

Clause 6(3) states - "Any question as to the validity, meaning or effect of any retained EU law is to be decided, so far as that law is unmodified on or after exit day and so far as they are relevant to it - (a)in accordance with any retained case law and any retained general principles of EU law, and (b)having regard (among other things) to the limits, immediately before exit day, of EU competences."

When applying Clause 6(3) the courts will need to look at Clause 6(6) - "Subsection (3) does not prevent the validity, meaning or effect of any retained EU law which has been modified on or after exit day from being decided as provided for in that subsection if doing so is consistent with the intention of the modifications."

Clause 6(4):

Clause 6(4) is an immediate qualification of Clause 6(3) ...

"But - (a)the Supreme Court is not bound by any retained EU case law, (b)the High Court of Justiciary is not bound by any retained EU case law in certain circumstances and (c) no court or tribunal is bound by any retained domestic case law that it would not otherwise be bound by.

Retained EU case law is defined - Clause 6(7) - as: "any principles laid down by, and any decisions of, the European Court, as they have effect in EU law immediately before exit day and so far as they -(a) relate to anything to which section 2, 3 or 4 applies, and (b) are not excluded by section 5 or Schedule 1, (as those principles and decisions are modified by or under this Act or by other domestic law from time to time)"

Clause 6(5):

"In deciding whether to depart from any retained EU case law, the Supreme Court or the High Court of Justiciary must apply the same test as it would apply in deciding whether to depart from its own case law."

The test is discussed - with links to relevant cases - in the judgment of Lord Hope at [2010] UKSC 28 paras 24 and 25.

Clause 6(6):

This was referred to above because of its relevance to Clause 6(3).

Some Discussion:

A] Complexity is added to the law because the definitions of the various types of "retained" law are difficult to understand. Furthermore, the application of the various clauses to particular cases will present considerable difficulties for both lawyers (adding to litigation costs) and the courts. As Paul Daly commented on his Administrative Law Matters blog (HERE) - "Clauses 1-6 form a swamp of definitions, rules and standards designed
to avoid chaos by ensuring that EU law remains enforceable in the immediate
aftermath of Brexit. Even seasoned lawyers are not going to enjoy
navigating these provisions."

B] Lord Neuberger, the outgoing president of the UK Supreme Court, made an extraordinary intervention over the Government’s Brexit plans
earlier this week. In an interview with the BBC, he said that - "If [the
Government] doesn't express clearly what the judges should do about
decisions of the European Court of Justice after Brexit, or indeed any
other topic after Brexit, then the judges will simply have to do their
best.”

It would be “unfair”, he said, “to blame judges for making the law when
Parliament has failed to do so”. The judiciary would “hope and expect
Parliament to spell out how the judges would approach that sort of issue
after Brexit, and to spell it out in a statute".

Clause 6(2) appears to be the problem - "A court or tribunal need not have regard to anything done on or after exit day by the European Court, another EU entity or the EUbut may do so if it considers it appropriate to do so."

If the judges were to choose to follow a post Exit Day decision of the CJEU then they might end up displeasing some politicians. Conversely, if the judges were to decide not to apply such a decision of the CJEU then there could be protests from those who consider that they have got things wrong!

Hogarth points out that "Some experts believe the clearest instruction would be to tell the
courts they must regard ECJ decisions as persuasive. That is because
‘persuasive authority’ is a recognised part of the grammar of precedent."

It may be an interesting debate as to the real difference between saying "treat decisions as persuasive" as opposed to telling the courts that they "need not have regard to anything done on or after exit day by the European Court, another EU entity or the EU but may do so if ... appropriate to do so." If presented with a post exit day decision of the CJEU the judges would naturally consider whether to have regard to it and not simply reject it out of hand. They would require sound reasons for any decision they make about whether or not to "have regard to" the decision and, if so, what they do about it.

It seems likely that Clause 6(2) will be the subject of intense debate in Parliament and a different formulation may emerge. For my part, I recognise the concern expressed by Lord Neuberger and we have already seen the judges castigated in a piece of appalling journalism as "Enemies of the People."